When It Comes to Manipulating Judicial Elections, Anything Goes

Judge's Claims Against Election Law Attorney Are Dismissed
The New York Law Journal by Joel Stashenko  -  January 17, 2012

An election law attorney who was sued by a judge who is a former client alleging he committed legal malpractice by using privileged information he obtained from her to help a rival he later represented during a race for Brooklyn surrogate has won dismissal of the case in a Nassau County court. Supreme Court Justice Thomas P. Phelan granted summary judgment to Bernard M. Alter and his Brooklyn firm, Alter & Barbaro, dismissing the claim brought four years ago by Civil Court Judge Shawndya L. Simpson. Justice Phelan ruled in Simpson v. Alter, 11095/09, that Mr. Alter's representation of Diana Johnson in a 2007 race for Brooklyn surrogate did not breach any lawyer-client privilege between Judge Simpson and Mr. Alter that developed when she was running for Brooklyn Civil Court in 2003. Judge Simpson argued that she retained Mr. Alter in large part to help her meet residency requirements in Brooklyn for her successful 2003 campaign for Civil Court. Judge Simpson, who sits in Manhattan Civil Court, contended that Mr. Alter distributed confidential information he gleaned during her 2003 campaign to Ms. Johnson and reporters who used the information to challenge Judge Simpson during the 2007 surrogate's race about whether her legal residence was in Brooklyn or South Orange, N.J.  Ms. Johnson won the Democratic primary against Judge Simpson in 2007 and was elected Brooklyn surrogate that fall. Mr. Alter, in an interview on Jan. 13, praised Justice Phelan for working "long, hard and laboriously" before reaching his decision.

"He saw that the plaintiff's case had no substance and he threw it out," Mr. Alter said. "I was getting tired of my reputation being thrown around. She [Judge Simpson] is nothing more than a sore loser trying to get back at everybody who opposed her election for surrogate judge." Neither Judge Simpson nor her attorney, Laura M. Dilimetin of Dilimetin & Dilimetin in Manhasset, returned calls seeking comment.  The 2007 surrogate's race spawned a number of lawsuits. Before the primary, Judge Simpson attempted to have Mr. Alter disqualified as Ms. Johnson's attorney based on his prior representation of Judge Simpson. But Queens Supreme Court Justice Peter J. O'Donoghue dismissed those claims, and also rejected Mr. Alter's attempt to have Judge Simpson disqualified from the 2007 ballot because of residency rules (NYLJ, Aug. 21, 2007). Last year, Justice Phelan removed Surrogate Johnson as a defendant in Judge Simpson's 2009 suit, ruling that all oral and written communications between Mr. Alter and Surrogate Johnson in the 2007 campaign were shielded from disclosure by the attorney-client privilege. At the same time, the judge ruled that the case against Mr. Alter could go forward (NYLJ, June 27, 2011). But on Jan. 9, Justice Phelan rejected Judge Simpson's claims for legal malpractice, breach of fiduciary duty, breach of contract, aiding and abetting, unjust enrichment and other allegations against Mr. Alter. Among other things, Justice Phelan ruled that Judge Simpson failed to rebut Mr. Alter's contention that his work for her was completed in July 2003. She could make only "vague allegations" of her meetings with Mr. Alter beyond the Civil Court race, the judge said, thus placing her allegations related to the 2007 campaign outside the three-year window for filing legal malpractice, breach of contract and other claims.  "Her failure to produce any direct or documentary evidence such as time sheets, notes, appointment book entries or phone bills, substantiating these meetings do not suffice, particularly where defendants have also demonstrated that plaintiff's first and third causes of action for breach of contract and legal malpractice are barred by applicable statute of limitations period," Justice Phelan wrote. He also held that Judge Simpson, who sought $15 million in damages, did not demonstrate triable issues of fact on those claims. "Plaintiff has simply failed to demonstrate that her damages, monetary or otherwise, including her loss of the surrogate's election in 2007, was a result of defendants failure to perform under their contract," he wrote. "Plaintiff has failed to establish that her damages resulted from the alleged attorney negligence or fiduciary misconduct." The ruling ends the long-standing litigation, the justice determined. "Incidentally, this holding is now law of the case and precludes any relitigation by plaintiff that defendants' representation of Johnson in any way breached plaintiff's right and/or privileges as a former client," Justice Phelan wrote.  Mr. Alter represented himself. @Joel Stashenko can be contacted at jstashenko@alm.com.